MISC 97760

March 15, 1982

Suffolk, ss.

Randall, C. J.


Plaintiff brought this action to establish title by adverse possession to a portion of Lot 16 which abuts the rear lot line of Lot 19 located at 7 Daley Road, Medford, Massachusetts, shown as "locus" on Appendix A attached hereto [Note 1]. Defendant Mystic Valley Construction and Development Corporation, the holder of record title to Lot 16 denies plaintiff's claim of adverse possession. Defendant DeCarli is the mortgagee of Lot 16 and likewise denies plaintiff's claim; and together with defendant O'Neil, who denies ever having title to locus, seeks dismissal against them and costs.

A trial was held on November 18, 1981. A stenographer was sworn to record and transcribe the testimony in the case. Five witnesses testified and 18 exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

On all the evidence the Court finds the following facts:

1. By deed dated November 15, 1948 and recorded in Book 7362, Page 398 in the Middlesex South Registry of Deeds Francis C. and Sophie L. Sybil acquired title to Lot 19 at 7 Daley Road, Medford, Massachusetts as shown on Appendix A.

2. During 1949, Francis C. and Sophie L. Sybil had a house constructed on said lot 19 and commenced to use and improve not only this lot but also that portion of Lot 16 shown as "locus" on Appendix A.

3. Mr. Sybil testified that he and the plaintiff knew they were not the rightful owners of said land when they commenced to use it, that it belonged to a person named Ring. On cross-examination he testified that they intended "to take the land" although when questioned further stated that they did not intend to "deprive these people of it". The Court finds that the plaintiff and her husband Mr. Sybil meant to appropriate the land by use for the requisite number of years if not otherwise interrupted.

4. During 1949 the Sybils cleared, leveled, and seeded locus. Thereafter they also planted a tree, shrubs and flowers thereon and treated locus as part of their backyard. They hired a gardener who came once a week, weather permitting, to maintain locus as well as their own yard from this time on.

5. At some time during 1953 or 1954 there was testimony that the Sybils erected a picket fence approximately 3 feet high along the westerly line of the locus. Mr. Anthony Angelo who lives across the street from plaintiff and Mr. Sybil on Lot 24 (See Appendix A) at 14 Daley Road, testified that he remembered a fence being installed on locus in approximately 1956 or 1957. The Court finds that this fence was erected along this westerly rear line of locus at least as early as 1957.

6. By deed dated March 21, 1957 and recorded in Book 8919, Page 535 in the Middlesex South District Registry of Deeds, Francis C. and Sophie L. Sybil conveyed Lot 19 to plaintiff Sophie L. Sybil alone. There was testimony and the Court finds that this conveyance of Lot 19 in no way affected the use, enjoyment, or maintenance of the locus by plaintiff and Mr. Sybil.

7. Between 1964 and 1965 plaintiff and her husband replaced the fence located at the rear of locus with a similar picket fence.

8. Again, in approximately 1968 the said fence was again replaced, this time with a five foot high cedar stockade fence.Throughout this whole period to the present, plaintiff and her husband continued to maintain locus and replaced shrubs and flowers as needed.

9. On September 29, 1977, an underground sprinkler system was installed with the sprinklers being located on locus as well as all of plaintiff's lot 19.

10. There was testimony from Mr. Alpheus Zirella, who has lived on lot 18 (See Appendix A) since 1949, that he remembered Mr. Sybil clearing locus and Mr. Sybil's father planting trees thereon shortly after the Zirellas moved to Daley Road; that a picket fence was erected on locus at a time between 1952 and 1955 and that this fence was subsequently replaced by a stockade fence. Mr. Zirella testified that the Sybils had the entire lawn resodded and that their gardener maintained locus and planted shrubs thereon over the years.

11. Mr. Michael Pontrandolfo, a neighbor who lived on Lot 17 (see Appendix A) from 1950-1979 testified that he likewise observed Mr. Sybil clearing locus and erecting fences on locus over the years. He likewise remembered that the Sybils' gardener did a lot of work beautifying the area over the years.

12. There is no evidence as to ownership of Lot 16 prior to September 11, 1979 at which time defendant Velia DeCarli was the record owner of locus.

13. By deed dated January 11, 1980 and recorded in the Middlesex South District Registry of Deeds in Book 13877, Page 355 the defendant Mystic Valley Construction and Development Corporation acquired record title to locus.

14. Plaintiff makes no claim to the area of Lot 20 enclosed by the fence as shown on Appendix A.

1. Has the plaintiff established title to locus by adverse possession?

In order to establish title by adverse possession there must be proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for a period of 20 years. Ryan v. Stavros, 348 Mass. 251 , (1964), M. G. L. c. 260, §21. The burden or proving adverse possession extends to all of the elements of such possession and if any single element is left in doubt, the claimant cannot prevail. Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 (1968).

The plaintiff has satisfied her burden of proof as to every element of adverse possession. For more than 20 years the locus has been an integral part of plaintiff's yard. lt has been used exclusively by the plaintiff and her family exactly as the area to which plaintiff has record title was used. This use was actual as shown by the testimony and evidence that the claimant and her husband had locus cleared, leveled and planted in 1949 (See paragraphs 2, 3, 10 and 11 herein); that the planting and maintenance of locus has been an ongoing and routinely carried­out process since 1949 (See paragraphs 3, 6, 8, 10 and 11); that fences were erected on locus, at three different times, the first being between 1953 and 1957, the second in 1964 and a large cedar fence installed in 1977 (see paragraph 9 herein).

The use was also open and notorious. A use is open if made without attempted concealment. Foote v. Bauman, 333 Mass. 214 (1955). No attempt to conceal their use of locus was made by the Sybils. Their neighbors, some of whom testified herein, knew of the Sybils' use. The use was made more visable by their leveling, clearing and fencing the land. The use was also notorious, as the Sybils' acts regarding the land were sufficient to put the true owner on notice of the adverse claim. Kershaw v. Zecchini, 342 Mass. 318 (1961). It is not necessary that the true owner have actual notice. Foote v. Bauman, 333 Mass. 214 (1955). Again, the Sybils' leveling, seeding, planting and fencing of locus for over 20 years was sufficient enough to put the true owner on notice that his property was subject to their claims.

The use was exclusive as may be seen by the fencing and plantings shown on Appendix A.

Finally, the use was certainly adverse. Mr. Sybil testified that the Sybils knew locus was not rightfully theirs when they started using it and that they intended to take the land. (See paragraph 3 herein). On the other hand, Mr. Sybil also testified that he did not intend to "deprive these people of it" (See paragraph 3 herein). Whether or not the deprivation was intended is not fatal to their claim.

"That the uncommunicated mental attitude of the possessor is irrelevant where his acts import an adverse character to his holding is shown by cases involving disputed boundaries where the possessor intends to hold without intending to deprive any other of what is rightfully his".

Ottavia v. Savarese, 338 Mass. 330 at 339 (1959). The Court finds and rules that plaintiff and her husband used the land as their own and that they did so with the belief and understanding that if they so occupied the premises for over twenty years they would acquire title to it. These acts, taken together, are determinative in establishing that the degree of control necessary for establishing title by adverse possession has been satisfied by the plaintiff. Collins v. Cabral, 348 Mass. 797 (1965), Shaw v. Solari, Mass. App. Ct. (1979) [Note 2]

The Court rules that plaintiff has met her burden of proof by establishing every element necessary to support her claim of title by adverse possession.

Judgment accordingly.

exhibit 1

Appendix A


[Note 1] Appendix A is a copy of Exhibit 6 with additions made by the court.

[Note 2] Mass. App. Ct. Adv. sh. (1979) 1551.